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A plea in law for equal marriage

13 August 12

In full, this year's winner in the essay competition organised by the Society with the Scottish Parliament: a proposal for a member's bill that is topical and would "make a useful change to Scots law"

by Helen Dale

In 2002, A was happily married to her husband, although she was not well. About two years earlier – and although she was only 33 – her periods had stopped, her voice had deepened and her shoulders had broadened. She began to grow facial hair, which she shaved off, obsessively, although she felt very odd doing so. She had always been considered “mannish” as a child and was unusually good at sport, to the point of being invited to play cricket with her high school’s First XI and coach junior rugby. Her husband had always liked "sporty girls", and they met through a rugby supporters’ association.

Although she hid the burgeoning changes from her husband, of course he noticed them. Eventually, and in severe distress, she told him that she thought she was turning into a man. Medical tests revealed a huge spike in her testosterone levels and a hitherto undiagnosed genetic disorder that meant she had both male and female characteristics. At the time of the tests, she did not feel properly male or female, but it was clear that she still loved her husband, and he loved her in return.

The couple waited, and over a further two years – and without, at this stage, any treatment – the masculine characteristics became more dominant. “She” felt more like ‘he’ and the couple agreed that A would undergo the necessary medical treatment and legal changes to be considered male. The medical process went relatively smoothly, albeit with pain and some adjustment complexities. The law, however, was less amenable. A was told that in order to finalise his transition from female to male, he and his husband would need to get divorced. Only then would his “interim gender recognition certificate” be made a “full” one.(1)

“But we’ve been married for nine years,” he pointed out. “Can’t we just stay married? Our 10th wedding anniversary is coming up.”

“No. You have to divorce, and then, if you want, you can form a civil partnership.”(2)

“But I thought marriage and civil partnership were supposed to be the same!”

A member’s bill both useful and topical

In this paper, I submit that the Law Society’s hypothetical MSP should bring forward a member’s bill to legalise same-sex marriage in Scotland, not only to end the cruelty and absurdity visited on people like A and his husband (which would be useful), but also to show that Scotland rejects discrimination and embraces tolerance and freedom (which would be topical).

Here, I address and rebut the arguments against equal marriage. Of necessity, this involves a consideration of legal history and marriage customs, as well as arguments drawn by analogy from other, similar disputes, particularly the historic arguments over interracial marriage. Some of the findings I present will be discomforting to readers on all sides of this debate, but if law is to have efficacy, its makers – both in Scotland and elsewhere – should approach its enactment fully informed.

The arguments against equal marriage

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1. The argument from history, law and culture

The commonest argument against same-sex marriage has two forms, usually intertwined. The first is that heterosexual monogamy is the legal norm, and the second is that marriage has always and everywhere been for the procreation of children. Sometimes these two arguments are allied with the historically illiterate assertion that Christianity invented marriage, which makes one wonder what Jesus’s Jewish parents did.

The first assertion is simply false: variations on polygamy have, historically, been commoner than monogamy. Although monogamy is currently ahead on the numbers globally, there are many countries (primarily in the Islamic world, but also elsewhere) where polygamy is very common, and sometimes actively encouraged.(4) There have also been a variety of marriage forms globally and historically, and a couple of cultures that do not have the concept of marriage, one of which is still extant.(5)

The idea that marriage has always and everywhere been for the procreation of children is also false, and is tied to the development of monotheism. In classical (pagan) Roman law, the justification for marriage was the same as that in the modern developed world – the term the Romans used was affectio maritalis, which means exactly what it says. The jurist Modestinus informs us that: “Marriage, or matrimony, is a joining together of a man and a woman, implying a united life-style [individuam consuetudinem vitae continens]".(6)

It has become fashionable to argue that marriage in the past was always loveless, and a matter of arrangement and alliances, but that is just as historically illiterate as universalising the modern world’s focus on love and affection.

Although the assertion that Christianity invented marriage is ridiculous, it is worth addressing because it is sometimes allied to another falsity: that Christian Europe was the first truly monogamous civilisation. In fact, pagan Rome made monogamy a marital universal, with its great Empire imposing civilisational family values on conquered peoples in a manner to make the governors of British India blush.(7)

The difference, of course, is that classical Roman monogamy was strikingly modern, while the later Christian version (enacted, of course, by Roman Christians) was not. Classical Roman marriage law protected women’s property,(8) respected women’s autonomy,(9) did not impair married women’s capacity to contract, and allowed unilateral and consensual divorce to both men and women on equal terms.(10)

By contrast, Christian emperors constricted access to divorce, eventually banning it outright; severely impaired a married woman’s capacity not only to manage her property but also to leave the house without her husband’s permission, and – under Constantine – attempted to make (female) adultery a capital offence.(11) Perhaps most significantly, the Christian Emperor Theodosius enacted this law (at the same time as he was stripping married women of their rights):

“When a man marries and is about to offer himself to men in womanly fashion (quum vir nubit in feminam viris porrecturam), what does he wish, when sex has lost all its significance; when the crime is one which it is not profitable to know; when Venus is changed to another form; when love is sought and not found? We order the statutes to arise, the laws to be armed with an avenging sword, that those infamous persons who are now, or who hereafter may be, guilty may be subjected to exquisite punishment.”(12)

In short, Christianity does not own marriage, and when it did “own” it, it treated women badly and excluded same-sex couples, on pain of death. Its conception of marriage should not be universalised. To the extent that modern marriage law in Scotland resembles Roman marriage law (which is considerable, considering Scotland’s mixed legal heritage), the resemblance is to classical Roman marriage law. The inhumane Christian elements have been stripped away over time. Permitting equal marriage would merely be connecting the last link in the chain.

2. The argument from science

A subsidiary argument against equal marriage is the (relatively recent) deploying of scientific research in favour of “traditional” marriage. Now, as is clear from the above, “traditional” marriage is a rather flexible concept, so for the purposes of argument, I will treat it as a monogamous, heterosexual union.

The argument from science has two limbs. The first is that traditional marriage generates better outcomes for children; the second is that legalising same-sex marriage will have deleterious effects on the children raised in same-sex relationships. In other words, it argues that same-sex marriages are qualitatively and quantitatively inferior to heterosexual unions. Buried within these assertions, of course, is a further argument: that single-parenthood has a negative effect on children.

To deal with the last argument first, the available research reveals that the poor outcomes associated with children raised by single parents are linked to poverty and neighbourhood dynamics, not single parenthood. When single parents are educated and middle class, their children’s outcomes are similar to those of children in intact families.(13) Similarly, once economic circumstances are controlled for, there is no difference between children raised in same-sex or opposite sex relationships,(14) and may even be a small positive effect for children raised by same-sex couples.(15)

In sum, while there is evidence that – in certain economic circumstances – single parenthood may have a deleterious effect on children, there is no difference in parenting outcomes for children raised in same-sex and opposite sex families.

3. The “slippery slope”

The third argument against same-sex marriage – one that is gradually becoming more common – also has two limbs. The first turns on the idea that although recognising this form of marriage may be harmless, it could lead to the recognition of other forms of marriage that are harmful: we will slide down the “slippery slope” to polygamy and bestiality. It will become, the argument goes, impossible to deny equality demands, however absurd.

Earlier in this paper I mentioned that, historically, polygamy (particularly polygyny; polyandry is historically unusual) was more common than monogamy. At present, polygamy is illegal in Great Britain (including in Scotland), and any recognition that it once received for the purposes of immigration and benefits is now in the process of repeal by the current Westminster Government.(16)

Although there are differences of degree (depending, for example, on whether the polygamous union is governed by Sharia or African law), there is no doubt that polygamy is bad for the status of women (very bad in the case of Sharia) and indubitably linked to higher rates of interpersonal violence among low-status males (once again, worse in the case of Sharia), contributing to overall higher crime rates.(17)

The second limb of the “slippery slope” argument concerns the potential for those who (or those whose religious employers) are opposed to same-sex marriage to be forced to conduct such marriages against their will, typically as a consequence of the Equality Act 2010.

Both these concerns – of all the arguments against equal marriage canvassed here – are reasonable. That the current Government is being forced to unpick the effects of overzealous cultural relativism when it comes to benefits and immigration is cause for concern.

Of course, the difference between same-sex marriage and polygamy couldn’t be more stark: same-sex marriage or civil partnership is present in developed countries where the status of women is high and where there is a strong commitment to human rights. Significantly, the only country that permits both same-sex marriage and polygamy, South Africa, has a strong commitment to human rights, while Sharia does not govern its polygamy: that is a matter for Bantu and Zulu law.

Tolerance often involves accepting things we do not like. It may mean – for many monotheists – accepting equal marriage. It also involves accepting a religious body or person’s right to practise religious beliefs – the Catholic prohibition on marrying divorcees, for example. There is a serious argument to be made that – in balancing the civil rights of members of the public and the private right to individual freedom of belief – we have sometimes come down on the wrong side of the line. Tolerance may mean accepting the right of a pair of Christian or Muslim B&B owners to refuse service to a married gay couple.(18) It may also mean accepting the right of those who support equal marriage because it diminishes homophobia and misogyny to argue against the legitimation of polygamy on the grounds that it does precisely the opposite.

Avoiding the slippery slope takes courage. Fortunately, the first large-scale study on point shows that, when confronted with the slippery slope, western countries make human rights affirming choices.(19) Indeed, 17 years after recognising same-sex marriages in Scandinavia, there were higher marriage rates for heterosexuals, lower divorce rates, lower rates for out-of-wedlock births, lower STD rates, more stable and durable same-sex relationships, more monogamy among same-sex couples, and so far no slippery slope to polygamy, incestuous marriages, or “man-on-dog” unions.

Concluding comments, and an imaginative exercise

Much is made of the idea that marriages and civil partnerships are the same thing, but as the story of A at the beginning of this paper indicates, they are not. However, for those who are unmoved by A’s unfortunate circumstances, perhaps an argument by analogy will convince you. Lawyers love arguing by analogy: it’s part of our stock-in-trade.

Imagine that mixed-race couples in Scotland were permitted civil partnerships that were equal in their legal effect to marriage, but that marriage proper was confined to white people.

Now, imagine that you were black.

Equal marriage in Scotland would be both useful and rights-affirming, entirely in keeping with Scotland’s fascinating mixed legal history and appropriately coterminous with its present commitment to diversity and tolerance. I encourage the Law Society’s hypothetical MSP to commend the Bill to the House.

Helen Dale is qualified in two jurisdictions (Australia and England), and is currently working on Scotland. She studied her Australian law at the University of Queensland, her English law at Brasenose College, Oxford, and graduated LLB with distinction from the University of Edinburgh (LLB Accelerated) in June 2102. Before commencing legal studies and practice, she worked in editing and publishing (after a degree in English and Classics). She keeps her writing hand in trim at leading Australian law blog, http://skepticlawyer.com.au/

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Eric Norton

Tuesday August 21, 2012, 23:08

Excellent article, closely argued and well referenced. One quibble - no argument is given for proposing that "tolerance may mean accepting the right of a pair of Christian or Muslim B&B owners to refuse service to a married gay couple". The referenced case seemed fairly unambiguous - once you provide a service for which you charge, you fall under equality legislation, and should do so. In circumstances where highly religious service providers are rare, the harm caused by their discrimination may be small, but that is no real reason to permit such discrimination and no safeguard against the harm it does.

Andy Eakin

Wednesday August 22, 2012, 10:42

Fantastic article. One I've shared widely. A topic of much debate in New Zealand where I live with a Private Members Bill going to parliament next week for its first reading. Watching the debate in the various parts of the UK and Ireland with great interest.

Tara Msiska

Friday August 31, 2012, 16:04

Good going, Helen :) Really well argued. Though I'm not sure it would be the last link to allow equal marriage, as Roman law didn't have same sex marriage... there is an argument missing there. But it is a brilliant essay. A's case shows how ridiculously stupid it is to even have categories of sexuality and gender - s/he was between genders and the husband was what we call "bisexual", but there is no point in these categories; we're all human.